IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120001441


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the former spouse of a deceased former service member (FSM), requests reconsideration of her previous request for correction of the FSM's records to show he changed his Survivor Benefit Plan (SBP) annuity election from "spouse" to "former spouse" coverage within 1 year of his divorce.    

2.  The applicant states she is requesting reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision related to her request for payment of her deceased husband's SBP annuity, and she prays the Board will decide favorably this time.  She states she took care of her husband for 31 years, as he had lupus and was very sick at times.  She concludes by stating she knows the Board has different laws that are not provided to members or their families, and she thanks the Board for the work it has done on her behalf.

3.  The applicant provides:

* Spouse SBP Counseling Letter/Statement, dated 7 February 1995
* letters to the Army Reserve Personnel Command (AR-PERSCOM), dated 1 April 1999 and 3 June 1999
* a letter to the Commanding General, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, dated 16 November 2003
* a letter from the Ashe County, NC, Veterans Services Officer (VSO) to the Defense Finance and Accounting Service (DFAS) on the applicant's behalf, dated 22 November 2010
* an extract of a DFAS letter, addressed to the applicant's Member of Congress, dated 9 March 2011
* a 2-page extract of ABCMR Docket Number AR20110005696
* a single-page extract of a magazine article detailing the SBP

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110005696, dated 15 November 2011.

2.  The applicant provides letters to AR-PERSCOM, dated 1 April 1999 and        3 June 1999, a letter to the Commanding General, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, dated 16 November 2003, and a letter from the Ashe County, NC, VSO to DFAS on the applicant's behalf, dated 22 November 2010.  These documents constitute new evidence that was not previously considered by the Board; therefore, this new evidence will now be considered.

3.  The FSM was born on 5 November 1945 and married the applicant, Gxxxxx, on 27 December 1965. 
 
4.  On 31 October 1975, the FSM enlisted in the Army National Guard (ARNG).

5.  On 7 February 1995, the FSM completed a DD Form 1883 (SBP Election Certificate), thereby enrolling in the Reserve Component SBP (RCSBP).  On this form, he listed the applicant as his spouse and elected immediate spouse-only coverage based on the full amount of his retired pay. 

6.  On or about 30 September 1995, the FSM was honorably retired from the ARNG and transferred to the Retired Reserve. 

7.  On 17 January 1996, the FSM and the applicant entered into a separation agreement.  Their separation agreement contains the stipulation "the husband agrees to leave the wife named as the beneficiary on his National Guard retirement fund."

8.  On 6 February 1997, the FSM and the applicant were divorced.  Their divorce decree does not address the FSM's obligations with regard to his SBP annuity election.  The available record does not indicate the FSM attempted to change his SBP annuity election from "spouse" to "former spouse" within 1 year of his divorce.

9.  On 22 March 1999, the FSM died.  His death certificate lists his marital status as married, to his surviving spouse named Dxxxx Hxxxxxx, a person not the applicant.
10.  On 9 March 2011, DFAS responded to a congressional inquiry, made on behalf of the applicant, by the Honorable Richard Burr, Senator from the State of North Carolina.  In their response, DFAS made the following points:

* the FSM originally elected SBP coverage for his spouse
* upon their Judgment of Divorce, dated 6 February 1997, the applicant lost her eligibility for spouse SBP coverage
* the FSM did not elect SBP former spouse coverage for the applicant
* since their divorce decree did not grant the applicant entitlement to the FSM's SBP annuity, the applicant could not deem an election for the SBP
* the applicant is not entitled to a monthly SBP annuity

11.  The applicant provides:

* letters to AR-PERSCOM, dated 1 April 1999 and 3 June 1999, in which the applicant requests payment of a monthly SBP annuity based on the death of her former spouse
* a letter to the Commanding General (CG), XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, dated 16 November 2003, in which the applicant solicits the CG's assistance in obtaining an SBP annuity based on the death of her former spouse
* a letter from the Ashe County, NC, VSO to DFAS, dated 22 November 2010, in which the VSO (acting on the applicant's behalf) inquires as to the status of the applicant's claim for an SBP annuity based on the death of her former spouse

12.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide an annuity after death to surviving dependents.  Elections are made by category, not by name (emphasis added).

13.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provides a means for those who have qualified for Reserve retirement, but who are not yet age 60 [upon which they would be eligible to begin drawing retired pay, upon request, and to participate in the SBP], to provide an annuity to their survivors should they die before reaching age 60.  Three options are available:  (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they (the member) die before age 60 but delay payment until the date the member would have reached age 60; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does occur before age 60, the RCSBP costs for options B and C are deducted from the annuity (costs for option C being the more expensive). 
14.  Public Law 97-252, the Uniformed Services Former Spouse Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.

15.  Public Law 98-94, dated 24 September 1983, established SBP coverage for former spouses of retired members, including Reservists.

16.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member's agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

17.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relative to the SBP.  It permits a person to elect to provide an annuity to a former spouse; however, there is no provision in the SBP that makes former spouse coverage an automatic benefit.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce (emphasis added).

18.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of the Board's previous decision, regarding her request for payment of an SBP annuity based on the death of her former spouse, was carefully considered.

2.  The FSM and the applicant were married on 27 December 1965 and were divorced on 6 February 1997.  The FSM elected RCSBP coverage for his spouse at the time of his transfer to the Retired Reserve; however, following their divorce on 6 February 1997 the applicant lost her entitlement to an SBP annuity as she was no longer the FSM's spouse.  There is no evidence the FSM took action to change his SBP annuity election from "spouse" to "former spouse" within 1 year of his divorce.
3.  The evidence shows the FSM remarried prior to his death, thereby making his legal spouse at the time his SBP annuity beneficiary.  

4.  In view of the foregoing, there is an insufficient basis to grant relief in this case.  However, the applicant has the option to seek relief in a court of appropriate jurisdiction. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110005696, dated 15 November 2011.




      _____________x____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100020953



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ABCMR Record of Proceedings (cont)                                         AR20120001441



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